New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1887-12-02
rs IT A LEGAL COMMISSIONf
THE APPOINTMENT OF JUDGE COOLEY
AND HIS ASSOCIATES.
QUESTIONS TO DE RAISED IN THE sENhTr-TUE
LAW UPON THE POINT .lNB TIKI pRECEDENrs.

QUESTIONS TO DE RAISED IN THE sEShTT-TUE
LAW urnN THE POINT ANB TIKI PRKcEDENTs.
tsr rELEaRArn TVS TRIBusE-l
WASHINGTON Dee l." The Senate has been rapod SO
often IN late years that apprehensive IL Will not
have strength resist another similar assault WAS the
startling made By lc ldng Republican Senator
who had rcn asked mis- opinion to what the Senate
will probably do in relation to the nominations Of
Messrs Cooley, Morrison ana their associates OF the
Interstate Commerce Commission
There has boon good deal OF talk abOut the parpose
of Senators raise troublesome questions relative to
the validity Of the appointment OF the Interstate Com
fnerce Commissioners. and distinguished lawyers
have gore far 20 express the opinion that the acts
OF the Commission as 1t is constituted are nall and
void The suggestive remark of the Senator quoted
indicates that at least Republican member is
sceptica abont the moral backbone OF the senate,
although he and others freely discuss the ease an
express their conviction that the President had right
to appoint the Commissioners in the OF the Senate
that is without having first obtained the advice and
coseEt OF the Senate-because these new offices
never before filed by with the advice ana consent
OF the Senate"
/ The facts necessary for an understanding OF the
question az issue these About four es before
Congress adjourned last March that body passed and
She President approved the ac which created the Offices
of Interafase Commerce Commissioners During the
period intervening between the passage Of that law and
the sine de adjournment OF Congress, the President
by authority OF the Constitution and also hy the express
terms OF the statute ITSELF empowcred 10 nomi-
paie and by and with tho consent Of the Senate.
appoint tho commissioners provided for in the law
The President did not nominate them, and tie Senate
adjourned sine die March A. Some DAYS afterward
The President appointed Mcssrs. Cooley Morrison and
their colleagues TO be Interstate Commerce Commits
roncrs
NO LFGN. or CONSTITUTIONAL EXISTENCE
"Those Senators who coincide with me in the con-
strlction OF the Of this case. said one Senator do
not intend TO views IN iacous splrtnor upon
personal political considerations. We recognize the
fact. as stated by Senator Edmunls in debate last
winner that this most important body of officers
that has ever been created by law, aside from the
establishment of the judicial system of the United States
In the first place. ami that In these appointments the
President had to MI a most responsible posluon
affecting the welfare and tie intercourse and the
business the pody OF every community In the
United states We, however, gard the consistent long
established prccedents of the Senate executive session
almost equally bindng upon Senator as the text OF
a written statute. Upon the constitutional and legal
points involved maintain that after the final adjourn
ent aud during the of the Senate the President
did not consttutionaly possess the power to appoint
md co,uiassio persons nil these Offices. Therefore,
for ope Insist that the Interstate Commerce Com
.ssion as nw organized has legal constitutional
existence; its acts are null and void in law"
'Have there been in the Senate wherein the
legal and constitutional points you now make were
discussed !" tie Senator was asked.
ayes; / not advancing novel propositions. give
you the settled of Senate based upon precedens
0iigna ing that body nearly three-quart"rs OF
century They derived from the Constitution,
and the Senate the sole judge OF their application
the matter of appointments in office. The principle
involved first definitely and p0ntedly asserted In
1873 in a resolution offered in u secret or executive
session Of the Senate which set forth:
The President OF United states hayng by the Con-
suton, power fill va;ances that happen during
tha af he
shall expire the end OF .ae next s M snoh
vacancy happen in any ONCE not before full
by the phrase not before full is meant office
which has been created by law but never yet filed by
Presidential no ninaon and appointment by and with
the advice and of the Senate Mr.. Cleveland
failed while the Senate in session TO nominate to The
Senate for advice and consnte tho persons to be
appointed to iii the Offices of the Interstate Com
adjourned fnally the offices of Interstate Commerce
Commissioners had been occupied; nor have they
yet been filled according TO law"
A JUDICIAL DECISION ON THE QUESTION.
Have these questions been Discussed and decided
outside of executive sessions OF the Senate y
Yes The CHEF points involved have been thoroughly
discussed In open well in secret sessions OF the
Tacisiy decided About the AMI strongest light
s.wn Gs Howell who Sy mot S Hs
ago. while a Democratic United states Senator from
senator Jackson showed that ATTORNEY of the
United States had from time to tine given opinions that
, s to IN ,hst had the
session o. the Senate also showed other hand
detsrm, ne, hat Judge caaS ssder Of Philadelphia
whom Senator Jackson described as one OF the most
country y reached the conclusion that on vacancy
power IN the President to IN the vacancy in The recess
Of tue Senate even with atenPora;y aPpoinitmend
TO the GiIing vacancy old Office is conclusion
is the that Of the Senate repeatedly asserted
untitled office. an office not before fuli the
spsonss to 81 Which oh the senate Sas the s"q, y,
advice and consents The offices OF Interstate Com
en sase u.t DAYS before the Congress
adjourned last March. Since Congress adjourned the
Morrison and others yet has given its
advice and consent which according to the quoted reso
Judge Cadwaladerl essential the validity Of the
appointment OF Interstate Commission mora
Judge Cad waader even more explicit anu more
emphatic IN his further expression as to vscances he
appointments which shall last the close Of the next
session extends by The terms OF the CONSTITUTION
happened must be filled during session
Or they cannot he filled al alb IL language can
have begun during session and have extended into tue
recess"
TIE CASE or EX-GOVERNOR SHEPHERD.
The most recent in the Senate executive session
noteworthy character wherein the legal and consi
utiona unestians presented were similar 20 the chief
features in the Interstate Commerce Commission mat
terwas that ex Governor Alexander X. Shepherd, OF
the District Of Columbia The facts Of that case as they
have been recently ascertaped from Senators are On
he day before the close Of the fret session OF the ALd
Cong 23 1874 President Grant approved the
act which changed the form OF Government TOT ine
District OF Columbia by repealng the law that provided
for Governor, etc. and substituting therefor the
present form Of Government by trpartite O. lmsslon
Governor shepherd thereby legislated out OF
pfice, put President Grant Immediately nominated him
10 be the head Of thu Commission Bitter
End determined opposition brought 10 bear TO
prevent the confirmation OF Shepherd So strong was
Inc antagcnism In the senate that the President was
AArtoo hR n fFlenAs In fHo lanai IN
withdraw the nomination rather than subject Shepherd
TO the modification Of rejection which seemed certain
But this advice not heo.sed. The nomination OF
Shepherd rejected by round majority. and IN
almost the instant tie Senate confirmed The two
Oher nosninees for Commissioners, Ex-Governor William
Dennison of Ohio, and Henry T. Blow, of Missouri.
President Grant WAS still determined 10 place shepher